YEE SENG JOO v. PM SECURITIES SDN BHD  2 LNS 1511
- The Claimant commenced employment with the Company on 02.03.2008 as Head of Information Technology.
- The Claimant was unhappy with the Company’s decision to appoint him as the Head of Puchong Branch. The Claimant by letter dated 10.05.2013 sought clarification from the Company on their decision to transfer him to head the Puchong Branch and contended that it amounted to a fundamental breach of his contract of employment. The Claimant demanded that the Company remedy the breach within one week thereof, failing which he shall deem himself as constructively dismissed by the Company.
- Whether the re-designation of the Claimant amount to a fundamental breach of the Claimant’s contract of employment.
COURT FINDING AND REASONING
- The Claimant contract of employment gives the Company the power or right to transfer the Claimant hence applying “the Contract test” mere transfer os not a breach of the Claimant’s contract of employment.
- The test for breach of an implied term of trust and confidence is an objective test. The questions that we need to ask is whether by looking at the employer’s conduct as a whole, it is such that the employee cannot be reasonably and sensibly expected to put up with.
- It is obvious that the job scope of the Head of Branch is significantly different from that of the IT-related positions previously held by the Claimant. The Claimant’s duties and responsibilities were shifted from dealing with matters pertaining to IT to business development and management of the branch. It is undeniable that with the redesignation, there were material changes to the terms of the Claimant’s employment.
- Notwithstanding the Claimant’s rejection and objections, the Company has proceeded to issue the letter of re-designation and transfer to the Claimant and insisted that the Claimant take up the position of Head of Branch.
- It is trite law that any variation of the terms of the contract has to be mutually agreed upon by the parties. The Company has unilaterally and without the consent of the Claimant, re-designated the Claimant to be the Head of Puchong Branch from his previous position as Head of IT Application Services and Special Projects.
- The Claimant should not be compelled to take up the position of Head of Branch against his free will and volition as he has never signed up or agreed to be Head of Branch or do the things required of him as Head of Branch. It is immaterial whether sufficient training has been provided to the Claimant or the Claimant was slacking off on the one month Head of Branch training program.
- The Company clearly have acted or conducted in a manner which calculated or likely to destroy or seriously damages their relationship of trust and confidence by depriving the Claimant the choice of his employment. The Claimant wanted to be employed as IT personnel and in fact, contracted with the Company to do so. The Company cannot in turn arbitrarily and unilaterally transferred and re-designated the Claimant to other position materially different from the contract of employment.
- It is not disputed that the employer has a right to transfer its employees within the organization. However, such right is subjected to the basic principle of trust and confidence between the employer and employee which is implied in every contract of employment. This implied term is an integral part of the contract and is not swapped by the concept of managerial prerogative.